Expertise Areas
Competition
The Commission's power to issue Cease and Desist Orders was introduced in 2001 and applies to both restrictive trade practices and to merger and acquisition activity.
To date, the Commission has not exercised this power, but has now released guidelines on how it intends to determine whether or not to issue Cease and Desist Orders.
While these guidelines are helpful, they essentially mirror the legislation. Until the Commission has actually sought to issue a Cease and Desist Order, it is difficult to determine the circumstances in which such an order would be issued.
The guidelines
Cease and Desist Orders can only be issued by a specialist Cease and Desist Commissioner (there are currently two).
A Cease and Desist Order would be issued following an investigation by Commission staff and an application by the Commission's staff to one of the Cease and Desist Commissioners.
To grant a Cease and Desist Order, the Commissioner must be satisfied that:
- There is a prima facie case - "on the face of the evidence" - that a person has breached the Commerce Act.
- it is necessary to act quickly - the Commission's guidelines do not provide a great deal of guidance on this, merely stating that it may be necessary in some cases to act more quickly than litigation would allow.
- Serious loss or damage would result or is likely to result from the breach.
- It is in the interests of the public to issue a Cease and Desist Order ("Public" can include a "substantial number of individuals").
Enquiries and information
For more information on any of the cases, articles and features in Competition Update, please email Phil Taylor or call on 64 9 916 8940.
Disclaimer
This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.
